Consent

On August 20, 2014, the University issued an interim policy on sexual misconduct and relationship violence. That policy is in effect now. A copy of that policy can be found here. The You Are Not Alone support guide was developed before the interim policy was issued; thus, the You Are Not Alone support guide does not contain the most up-to-date information on the University’s policies, procedures, and resources with respect to sexual assault and relationship violence. However, it can still be used as a tool to identify key issues and options relating to sexual assault and relationship violence.

Coercion: Words or conduct that, viewed from the perspective of a Reasonable Person, substantially impair a person’s ability to voluntairly choose whether to engage in a particular sexual act (e.g., Sexual Contact or Sexual Intercourse). Coercion is something more than mere seduction or persuasion.

Coercion includes, without limitation:
1. physical force; and
2. words and/or conduct that would cause a Reasonable Person to fear imminent: harm to the person’s health, safety, or property or that of a third person; threat of the loss of a job benefit; or kidnapping of the person or a third person.

Consent:

The knowing and voluntary communication, through words and/or conduct, of an agreement to engage in a particular act, including without limitation a particular act of Sexual Contact or Sexual Intercourse.

For the purposes of this policy, the following rules shall be used to determine whether Consent was communicated for a particular act:

Whether an individual has communicated Consent is evaluated from the perspective of what a Reasonable Person who perceived the individual’s words and/or conduct would have understood.

One’s own use of alcohol, drugs, or other substances does not diminish one’s responsibility to obtain Consent from the other person. Moreover, another person’s use of alcohol, drugs, or other substances does not diminish one’s responsibility to obtain Consent from that person.

Consent must exist from the beginning to the end of each sexual encounter and for each particular act (e.g., Sexual Contact and Sexual Intercourse) that occurs during a sexual encounter.

The responsibility for obtaining Consent rests with the individual who voluntarily and physically initiates a particular act (e.g., Sexual Contact and Sexual Intercourse), even if the other person initiated the sexual encounter.

Consent cannot be obtained by taking advantage of the Incapacitation of another person, or inferred from the Incapacitation of another person, if one knew (or a Reasonable Person would have known) that the other person was Incapacitated. Because the Incapacitation of another person may be difficult for one to discern, persons subject to this policy are strongly encouraged to err on the side of caution (i.e., when in doubt, assume that the other person is Incapacitated and therefore unable to give Consent.)

Consent also cannot be obtained by or inferred from:

Coercion;

silence that is not accompanied by conduct evidencing an agreement to engage in a particular sexual act;

Consent communicated by the other person on a previous occasion;

Consent communicated to another person;

the other person’s failure to resist physical force (however, for purposes of this policy, the other person’s resistance to physical force will be viewed as a clear demonstration that the person has not communicated Consent);

the sexual arousal of the other person;

a current or previous dating, romantic, intimate, or sexual relationship with the other person;

currently or previously cohabitating with the other person;

the other person’s attire;

the other person’s reputation;

the other person’s giving or acceptance of gifts; or

the other person’s extension or acceptance of an invitation to go to a private residence, room, or location.

A verbal “No” (or words equivalent to “No”), even if it sounds insincere or indecisive, always means that Consent has not been communicated, or if previously communicated, has been withdrawn. The absence of a verbal “No” does not necessarily mean that Consent has been communicated.

Consent to one type of Sexual Contact or Sexual Intercourse (e.g., oral intercourse) does not constitute or imply Consent for another type of Sexual Contact or Sexual Intercourse (e.g., vaginal intercourse), whether during a sexual encounter or during a previous sexual encounter.

A person has a right to change his/her mind; thus, Consent to engage in a particular act of Sexual Contact or Sexual Intercourse may be withdrawn by a person at any time. A withdrawal of Consent is communicated through a person’s words and/or conduct. Once a person’s withdrawal of Consent has been communicated through that person’s words and/or conduct, the other person must cease the particular act of Sexual Contact or Sexual Intercourse. Consent also is automatically withdrawn by a person who becomes Incapacitated.

A person who is under the age of eighteen (18) (i.e., a minor) cannot give Consent; however, a person who is at least the age of thirteen (13) and less than the age of eighteen (18) can give Consent to sexual acts with another person who is less than four (4) years older than them.

The definition of consent for the purposes of criminal law in the State of Tennessee is explained in Appendix E.

Incapacitation:

A temporary or permanent state in which a person cannot make informed, rational judgments (e.g., judgments concerning Sexual Contact, Sexual Intercourse, or Sexual Exploitation) because: the person lacks the physical or mental capacity to understand the nature or consequences of their words and/or conduct; and/or the person is unable to physically or verbally communicate Consent. Incapacitation can be voluntary or involuntary. Incapacitation is determined based on the totality of the circumstances.

Incapacitation may result from: sleep; unconsciousness; temporary or permanent physical or mental disability; involuntary physical restraint; or the influence of alcohol, drugs, or other substances, including, without limitation, substances used to facilitate Sexual Assault (e.g., Rohypnol, Ketamine, GHB, and Burundanga).

When alcohol, drugs, or other substances are involved, Incapacitation is a state beyond mere drunkenness or intoxication. Indicators of Incapacitation may include, without limitation: lack of control over physical movements (e.g., inability to dress/undress without assistance; inability to walk without assistance); lack of awareness of circumstances or surroundings; vomiting; unresponsiveness; and inability to communicate coherently. Non-consensual Sexual Contact: Engaging in Sexual Contact with another person without the Consent of that person. Non-consensual Sexual Intercourse: Engaging in Sexual Intercourse with another person without the Consent of that person.Sexual Assault: Engaging in Non-Consensual Sexual Contact or Non-Consenual Sexual Intercourse.

The Hilltopics Student Handbook provides students, faculty, and staff with campus policies, procedures, standards of conduct, etc. As defined in Hilltopics, (page 14), the following definitions related to sexual assault or misconduct are as follows:Consent is given by an affirmative verbal response or acts that are unmistakable in their meaning. Consent to one form of sexual activity does not mean consent is given to another type of sexual activity.Sexual misconduct is defined as any intimate touching of another person, or forcing a person to engage in intimate touching of another, without the consent of the other person, or in circumstances in which the person is unable to give consent due to age, disability, or an alcohol/chemical or other impairment. It is the responsibility of the person initiating sexual activity to ensure the other person is capable of consenting to that activity.Sexual assault is defined as any sexual act or attempt to engage in any sexual act with another person without the consent of the other person, or in circumstances in which the person is unable to give consent due to age, disability, or an alcohol/chemical or other impairment.On August 20, 2014, the University issued an interim policy on sexual misconduct and relationship violence. Updates to the You Are Not Alone Guide are in progress. The current version can still serve as a resource & provide options relating to sexual assault and relationship violence.